How Section 5 blocked a GOP power grab in Texas

Rep. Trey Martinez Fischer (TX) claps and cheers next to his wife, Elizabeth Provencio, Right (short black hair) at the Mexican American Legislative Caucus's...
Rep. Trey Martinez Fischer (TX) claps and cheers next to his wife, Elizabeth Provencio, Right (short black hair) at the Mexican American Legislative Caucus's...
Erin Trieb for msnbc

Update 6/25/2013: The Supreme Court Tuesday ruled that the coverage formula used to determine which areas are covered under Section 5 is unconstitutional. The decision effectively ends Section 5 unless Congress comes up with a new formula.

AUSTIN, Texas — In 2008, Wendy Davis, a city councilmember in Fort Worth, Texas, narrowly defeated a 20-term incumbent to win a state Senate seat. Davis, a Democrat, enjoyed strong support from her district’s black and Hispanic voters, who had largely been ignored by her Republican predecessor, and once in office she set about fighting for those who she felt lacked a voice.

She worked to kick-start economic growth in poor neighborhoods, pushed for increased public-school funding, and cracked down on predatory lending practices targeting the poor. When Fort Worth kids were forced to crawl under idling trains to get to school, Davis won funding to fix the problem.

But Texas Republicans were eager to win back Davis’ seat and increase their Senate majority. And in 2011, they used their control of the redistricting process to improve their chances.

Redistricting requires state and congressional district lines to be modified each decade to reflect the latest Census data. The GOP plan radically changed the demographic makeup of Davis’ district, among others, moving tens of thousands of black and Hispanic voters into neighboring districts. In fact, of the 94 precincts that were over 70% minority, Republicans cut out 48 (see maps of District 10 below). In the new map, blacks and Hispanics were placed in separate districts from each other and were outnumbered by the white conservative majority, which tends to vote Republican.


Davis and her constituents had one recourse: The Voting Rights Act. Under Section 5 of the landmark civil-rights law, election changes made in certain areas with a history of discrimination—including Texas and most other southern states—can be blocked by the federal government if they might reduce the voting power of minorities.

Though Davis is white and non-Hispanic, her background made her a good fit for the district’s minority community. Raised by a single mother with a sixth-grade education, Davis had herself become a single mother as a teen. She worked multiple jobs to put herself through college on scholarship. “I have a story that’s very similar to so many people that I see struggling in the district that I represent,” Davis said in an interview at her office at the state capitol in Austin.

Redistricting would make that story harder to tell. “They literally just ripped it apart,” Davis said of her district.


The office of Texas House Speaker Joe Straus, who played a key role in the redistricting, did not respond to a request from msnbc for comment on the process.

The move didn’t just imperil Davis’ re-election. It took away the ability of minority voters to band together and elect the candidate they wanted—violating a core principle of most redistricting efforts to keep “communities of interest” together.

Minority voters, Davis said, “were being separated very purposely from each other—and therefore from the power to ever express their preference at the ballot box again.”

A federal court sided with Davis and the U.S. Justice Department last August–just months before the 2012 election—striking down Texas’ redistricting plan and ordering it to draw up new lines.

Her district substantially restored, Davis was re-elected last year by a nearly identical margin to her 2008 victory.

But redistricting happens every decade, and next time around, Davis and her constituents might not be able to count on Section 5. In February, the Supreme Court heard a challenge to the provision which argued that it’s unconstitutional to single out certain areas for special scrutiny. In a ruling to be announced this month, many court-watchers predict the justices will strike Section 5 down.

Opponents of the provision say it’s no longer needed, pointing to the racial progress since the civil rights era. But Texas politics are on a different trajectory. There, the soaring Hispanic population is threatening to upend the white conservative majority, driving talk that the Lone Star State could turn blue within a decade or two.

In response, Republicans have been going all-out to dilute minorities’ political influence, using the redistricting process as one of their key tools. And Section 5 of the Voting Rights Act has emerged as perhaps the most powerful obstacle standing in their path.

Gaming the System

The recent population explosion meant Texas was assigned four new congressional seats, more than any other state. By controlling the redistricting process, Republicans ensured that massive Hispanic growth wasn’t reflected in the new map.

“With all that dynamic growth, with all of that history being made right before our eyes, Texas minorities received zero seats for all the wonderful growth they brought to our state,” Rep. Trey Martinez Fischer, a Democrat who chairs the Mexican-American Legislative Caucus, which led the fight against the redistricting plan, told msnbc.

For the GOP, this was part of a national strategy. Using redistricting to boost their number of seats in Congress has been crucial to the party’s ability to hold onto a share of power in Washington, allowing them to largely stymie Obama’s agenda. Of course, the tactic was nothing new: Gerrymandering—drawing electoral districts to advantage a particular party or candidate—goes back to the earliest days of the Republic, and in 2011 California Democrats drew attention for manipulating the supposedly independent redistricting process in their state to create the safest possible seats for their party’s incumbents.

But in this cycle, Texas was the only state that broke the law.

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In 2010, Quico Canseco, a Tea Party Republican who supported Arizona’s harsh immigration law and voted with his party 96% of the time, won a close race for U.S. Congress in a swing district that stretched from San Antonio to the New Mexico border almost 600 miles away.

Texas Republicans wanted to use redistricting to help him hold onto the seat. But if they simply reduced the district’s share of Hispanic voters, the plan would likely be knocked down in court. Instead, they took out several high-turnout Hispanic neighborhoods—one in south San Antonio, another in the border town of Eagle Pass, which found itself split right along Main Street —and replaced them with far lower-turnout Latino areas, including some in El Paso County (see map of Congressional District 23 below). That way, the minority share of the district’s population would be unchanged, but it would still be harder for Democrats to win. In all, 600,000 people were moved into or out of the district.


In a November 2010 email that later surfaced in court, Eric Opiela, a lawyer for the Republican House Speaker, asked one of the map-drawers, Gerardo Interiano, to find a way to “pull the district’s Total Hispanic Population … up to majority status, but leave the Spanish Surname RV [Registered Voters] and TO [Turnout] the lowest.” In other words, ensure that Hispanics still comprised a majority of the district, but also fix it so that the district’s Hispanic areas were ones where residents voted at as low a rate as possible. Doing so, Opiela wrote, would help in “shoring up Canseco.” Interiano replied that he’d “gladly help.”

“For anybody in Eagle Pass, if you told them it was two different congressional districts, it would completely baffle them,” Michael Li, a Texas election lawyer whose blog obsessively tracks the state’s redistricting process, told msnbc. “There’s no logical reason for splitting the city of Eagle Pass.”

Asked to consider the changes under Section 5, a federal court agreed. In the same August 2012 ruling that blocked the changes to Davis’ district, the court also blocked the GOP-drawn map for Canseco’s district.

“The map-drawers consciously replaced many of the district’s active Hispanic voters with low-turnout Hispanic voters in an effort to strengthen the voting power of [the district’s] Anglo citizens,” the judges wrote. They accused Texas of deceptively employing the strategy in order to “maintain the semblance of Hispanic voting power in the district while decreasing its effectiveness.”

Having been stopped from “shoring up” Canseco, Republicans narrowly lost the seat last fall to Democrat Pete Gallego.

“The map-makers clearly and blatantly tried to game the system, by drawing a map that trampled on the voting rights of Texans,” Rep. Gallego told msnbc in a phone interview from his Washington D.C. office. “This isn’t about political parties or politicians or candidates. It’s about the opportunity to give voters a chance to have their voices heard in a district where their vote will count.”

The court found that in both the Davis and Canseco districts, Texas had intentionally discriminated against minorities—a stronger finding than was needed to block the plan. That means that even if Section 5 is struck down, the original Republican maps likely can’t be reinstated, because intentional discrimination is also barred under Section 2 of the Voting Rights Act, which isn’t at issue in the Supreme Court challenge.

But unlike Section 5, Section 2 puts the burden of proof on victims of discrimination and makes them file suit after the fact. That might have been too late to stop the changes from going into effect for last fall’s election.

‘They basically sliced me up’

Since 1999, Stephen Holmes has served as a member of the Galveston County Commission’s Court–the county’s chief governmental body—representing a district that includes much of the working-class town of Dickenson, where he was raised.

“To be quite honest, I get a lot of support there among blacks, whites, everybody, because I grew up there. My parents live there, I got a brother there, you know,” said Holmes, who is African-American.

One third of the population in Galveston County, which sits on Texas’s Gulf Coast about an hour southeast of Houston, is made up of minorities. Holmes, 48, is the only non-white commissioner out of five. But when Galveston conducted its latest redistricting in 2011—a separate process from the state redistricting—it gave Holmes’ district a radical makeover.

Much of his hometown was removed, thereby significantly reducing his district’s share of African-American and Hispanic voters. In its place, the map-drawers, working with an outside Republican firm, added the upscale, overwhelmingly white Bolivar Peninsula, a sliver of land that juts out into Galveston Bay.

“They basically sliced me up, and carved up most of Dickinson, the place where I’m from,” Holmes said. The Bolivar Peninsula, he added, “has really no connection to any of the areas that I currently represent.”

Holmes was largely excluded from the process by the commission’s Republican majority. “On the day we were to adopt the maps, here comes a new map that nobody has seen,” Holmes said.

The result, yet again, was to drastically reduce the political power of the district’s minority voters.

That’s when the Justice Department stepped in–via Section 5. In a letter to the county blocking the redistricting, the Justice Department wrote that the county had failed to show their actions wouldn’t hurt minorities. It also took issue with the “deliberate exclusion” of Holmes from the process.

The federal government and the county ended up agreeing to a compromise plan that restored some, though not all, of Holmes’ district.

“We were fortunate, to be quite honest with you, that we did have Section 5,” said Holmes. “Because it ended up eliminating a lot of the things they were trying to do.”

To Wendy Davis and many others, the value of Section 5 has been to protect constituents’ rights in the redistricting process.

“Were we to start from scratch today and draw lines simply that were on a grid, and our districts reflected the actual makeup of our communities and not the slice-and-dice makeups that we see, we would have a completely legislature today,” Davis said.

“I guess the question that it begged from that is, are Texans as a whole being represented?” Davis continued. “Are their interests being represented? And I think the answer is no.”